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oil giant Chevron accountable for its human rights
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Thursday, October 30, 2008

Bowoto v. Chevron continued on Wednesday, the second full day of the trial, with the examination of the plaintiff's expert and two witnesses for the plaintiffs, including the beginning of the questioning of lead plaintiff Larry Bowoto. For a better understanding of a brief background on the case and to understand what precisely is at stake in this landmark human rights case, take a look at Daniel Firger's posts here and here.

This morning I watched the beginning development of a very specific narrative thread by Chevron – the underlying claim that they did not know, and could not know, that the Nigerian military forces would flagrantly violate human rights in the manner that the plaintiffs allege.

This thread began to emerge as the plaintiffs finished examining their expert, Dr. Michael Watts. Dr. Watts characterized the military government of Nigeria in the 1990s as signaling a general "descent into flagrant authoritarianism" and testified regarding the flagrant human rights violations that the military forces of Nigeria had committed in other areas of the nation and the extensive media and non-governmental organization coverage that those abuses had attracted. Dr. Watts cited a wide-variety of sources regarding these violations, from Nigerian media reports, to Amnesty International reports, to U.S. State Departments assessments.

However, during the subsequent cross-examination, Chevron's attorneys sought to cast doubt on Dr. Watts' contention that the Nigerian military forces were widely known to be the perpetrators of massive human rights violations. The lawyers took great pains to illustrate that the human rights violations referred to in Dr. Watts' report came from a location several states away from where the Bowoto incident occurred – inferring that because the violations were so remote Chevron could not possibly have known about them.

However, the basic assertion is ridiculous. The idea that Chevron, an international oil-conglomerate that is sophisticated enough to operate in nations around the world and sophisticated enough to remain as a constant presence during shifting governmental power in Nigeria, easily surviving military coup after military coup, could not have discovered what the U.S. State Department was able to include in one of their general assessments is laughable. With a long-term presence on the ground in Nigeria, with at least two separate local offices and over two thousand employees, it is impossible to imagine that Chevron would have no idea that the military forces were, at times, something less than professional in their exercise of force. After all, even your average American with no special knowledge could tell you that African military forces aren't generally known for their restraint and respect for human dignity.

But fabricated naïveté have long been the backstop to Chevron's activities around the world, serving as the company's first line of defense against any allegations of outrageous conduct levied against the corporation, employing what I'll call the "flamingo defense" (for the ability of the company to stick it's head in the sand whenever trouble comes around). Here the corporation is arguing that it couldn't have known that the uncontrollable Nigerian forces were dangerous to send into this "nervous" situation. In Burma that company has long argued that it couldn't have known that the military government Chevron was propping up has been one of the most brutal human rights violators on Earth. In Ecuador the company has long alleged that it could not have known that applying environmental standards that were inappropriate for the sensitive ecosystem of the rainforest would have such devastating effects.

At the end of the day, Chevron is again recycling old tricks. As I wrote about yesterday, it appears that every time the corporation's back is to the wall, they reach to the same bag and pull out the same tools, pivoting to the attack along the same tired themes. Their constant position seems to be borrowed from the Karl Rove playbook of "Deny everything. Admit nothing. Attack, attack, attack." But maybe that is to be expected – Chevron's legal department is dominated by Bush administration loyalists, including Charles James and famous author of the "torture memo", William Haynes.

The trial will be continuing in coming days, with lead plaintiff Larry Bowoto launching into the heart of his testimony tomorrow morning.

Tuesday, October 28, 2008

Opening arguments began in the landmark Bowoto v. Chevron case today, with the plaintiffs launching into an emotional outline of the events that led to the eventual shooting of several Nigerian unarmed protestors (check out Dan Firger's blog for brief summary of the background of the case). The lead attorney for the plaintiffs – Dan Stormer – seemed to get choked up when describing the manner in which he asserted the Nigerian soldiers, whom were paid by Chevron, shot the villagers. Among those shot was lead plaintiff, Larry Bowoto, whom Stormer said was holding up his hands to show he was unarmed when he was shot. Heavy stuff.

But Chevron's lawyers were not to be outdone. Defendant's lead counsel, Robert Mittelsteadt, lead the jury through a lengthy, step-by-step explanation of Chevron's version of the trial, complete with sophisticated 3-D animation presentations of what the oil derrick looked like. Mittelsteadt spent his opening statement describing the protestors as sophisticated criminals and sea pirates who executed a commando-style raid where they stormed the oil barge, taking radio stations and heliports to prevent anyone from leaving the platform or communicating with the outside world. He described a situation where the villagers were acting on their threats to raid the platform and hold the workers of the oil derricks hostage, creating a "nervous situation" that was a "ticking time bomb" when the workers wanted to go home to their families. The bottom line, Mittelsteadt said, was that this case is about an American company's right and responsibility to protect its workers from threats.

But that statement is ridiculous. Of course American companies have a right and responsibility to protect their workers from harm – no reasonable person would argue that a company has no right or responsibility to protect its employees. The question isn't if they can protect their workers but instead if a company can kill unarmed protestors and ignore basic human rights in doing so. As Franklin D. Roosevelt said when addressing concerns of land owners worried about productivity during the Great Depression, "I may not be a lawyer, and I do not know much about the law, but I do know that you don't shoot your neighbor for trespass". Chevron is basically arguing that unarmed and peaceful protestors can be shot for merely trespassing on property that they claim is causing environmental contamination that is killing them.

And Chevron knows this – and they know that the soldiers working for them were out of control. During the plaintiff's opening statement Mr. Stormer showed the jury an email from one of Chevron's local directors referencing an incident from 1997, a year before Larry Bowoto and the other villagers were shot, in which the Nigerian soldiers that Chevron employs shot and killed a schoolteacher. In this communiqué the director calls the soldiers "uncontrollable" and suggests that Chevron purchase rubber bullets to equip the soldiers with, so as to avoid any other unnecessary killings. Needless to say, Chevron neglected to take any action to either reign in the out of control soldiers or equip them with rubber bullets, setting the stage for the tragedy on the oil derrick that day.

So now Chevron's lawyers have spent their day characterizing the protestors as criminals and sea pirates who were intending to cause harm to their property. Hell, even Mr. Mittelsteadt basically admitted that the protestors may not have been armed, stating at one point that "an oil derrick is a very dangerous place for untrained people. If they turned a valve the wrong way, it could cause an explosion." So, I guess, since there was a danger in having untrained personnel on the oil derrick Chevron decided to solve that problem by having the untrained people shot. Hmm – not sure if that really fits with Mr. Mittelsteadt's assertion that Chevron didn't want anyone to be hurt.

But this tactic is old hat for Chevron – when confronted with individuals attempting to call out the corporation for human rights abuses, Chevron pivots to the attack, characterizing anyone standing up to them as greedy, money-grubbing, and out for a quick buck. Or worse, as in this case, Chevron calls them pirates and human rights violators themselves. They've used the same process in the long-running environmental litigation in Ecuador, where they've called Pablo Fajardo and Luis Yanza (the recipients of the Nobel Prize of the environmental movement, the prestigious Goldman Award and the recipients of a CNN Heroes Award) "environmental con men" who are attempting to embezzle money from Chevron. The corporation conveniently ignores or discounts the scientific evidence gathered in Ecuador over 16 years, including the assessment of an independent, court-appointed expert who found that Chevron was responsible for massive toxic contamination and faces a $16.3 billion dollar liability as a result.

Unfortunately, I was disappointed in plaintiff counsel's failure to see this coming. In their emotional opening statement this morning, Mr. Stormer failed to effectively preempt Chevron's basic point that Chevron was exercising its basic right and responsibility to defend its workers. Rather than simply highlighting that basic argument and emphasizing that Chevron has a right to defend their employees but cannot simply shoot unarmed protestors wholesale, the plaintiffs instead focused on the powerful emotion of their narrative, almost as if they were expecting that simply standing up and saying that Chevron shot unarmed people would carry the day for them. As a lawyer, I just don't think that is a sufficient response to Chevron's argument – you have to anticipate the arguments from the opposing side and explain how they are insufficient to address your point.

I thought that Chevron's lawyers got the better of it this morning – I hope that the counsel for the plaintiffs will start anticipating Chevron's responses as we move forward. I'm eagerly anticipating some drama in the days to come.

Monday, October 27, 2008

Just in: A landmark human rights trial, Bowoto v. Chevron, has finally begun in federal court in San Francisco, and a handful of Nigerian villagers have Chevron's corporate brain trust scrambling to defend itself.

Bowoto v. Chevron began in 1998 when Larry Bowoto and approximately 100 other community members staged a peaceful protest at one of Chevron's offshore oil platforms, demanding a meeting between company representatives and village elders to negotiate for the job training and education programs they had been promised in exchange for the severe environmental harms they had been forced to endure. They were unarmed, and after receiving word that Chevron would attend a meeting in a nearby village the following day, they prepared to leave the platform peacefully.

Before they could do so, three company helicopters carrying Nigerian military personnel swooped down on the platform and opened fire, killing two people and injuring several others, including Bowoto. Though Chevron claims the soldiers were firing in self defense, at least one of the men killed was shot in the back (my edit - AMW). Allegedly acting at the direction of Chevron, soldiers detained and tortured several other protestors, after which company personnel paid them for their services.

Bowoto and his co-plaintiffs filed their suit in 1999 in United States District Court in San Francisco. After nearly a decade of legal wrangling, the case now stands as an important milestone in the history of international human rights law:, a U.S. company could potentially be held liable in U.S. courts for gross human rights abuses committed in their overseas operations.

[End excerpt]

The case finally began today, and it appeared that Chevron was feeling the heat. Chevron turned out in force for today's first hearing, dispatching at least a dozen different lawyers and public relations personnel, including Vice-President and General Counsel Charles James, to the courthouse to combat the threat posed by these villagers. It was a surreal experience sitting in the courtroom and watching the contrast between the plaintiffs and the defendants: Larry Bowoto and his compatriots sitting calmly in their multicolored traditional garb contrasting sharply with Charles James and his lawyers and their expensive suits.

And the Chevron P.R. machine was in full swing, with familiar pro-Chevron blogger "Zennie62" attending the trial and meeting with Chevron's P.R. people immediately – at least until Judge Susan Illston issued a gag-order ordering both sides to refrain from issuing any statements or commenting on the case (let's see if that keeps Zennie quiet…Zennie has long been known to be a mouthpiece for Chevron in the 'blogosphere' and he has been under attack along with San Francisco writer Pat Murphy for being paid by Chevron to post blogs that mysteriously get google-bombed to the top of search engines. Neither Chevron, Murphy or Zennie has ever denied they get paid by Chevron even though they don't disclose such payments on their blogs.)

Judge Illston's gag order was the source of the biggest drama of the day – in a stunning setback for Chevron, Judge Illston forced Chevron's lead attorney to admit that Chevron has been paying Google to give priority to the website that give's Chevron's side of the story (purchasing "sponsored links" so that anyone searching "bowoto" or "bowoto chevron" would have the search send the user to Chevron's website first), then ordering Chevron to take down their links and stop any effort to manipulate search results by paying for sponsored-links, indicating that she was "disturbed" by Chevron's attempt to manipulate public perception of the trial.

I don't have any connection to Nigeria, and I don't have any ties to the plaintiffs, but as lawyer involved in the Amazon Defense Coalition, I think it's important to keep an eye on Chevron's rising human rights problems. Unfortunately, the tactics that Chevron has employed in this case – deny, delay, confuse, deny, attack, delay, and deny again – are all too familiar to anyone who has watched Chevron's attempts to deal with their rising human rights problems around the globe. From Nigeria to Ecuador to Burma, it is becoming clear that Chevron has a major problem when it comes to human rights and environmental policies – hopefully cases like Bowoto and the ongoing litigation in Ecuador will force the company to finally realize how out of step it is with the rest of the world and even its competitors in the oil industry, many of whom have developed sensible human rights policies while Chevron falls behind. The Amazon Defense Coalition released a press release on Monday about precisely this issue.

In any event, this case is just getting started – we'll be keeping an eye on it for the rest of the week. Stay tuned, and we'll keep you abreast of the drama as this landmark human rights trial unfolds…